The State as Parent: The Reluctant Parent? The Problems of Parents of Last Resort

Date01 March 2008
DOIhttp://doi.org/10.1111/j.1467-6478.2008.00414.x
Published date01 March 2008
AuthorJudith Masson
JOURNAL OF LAW AND SOCIETY
VOLUME 35, NUMBER 1, MARCH 2008
ISSN: 0263-323X, pp. 52±74
The State as Parent: The Reluctant Parent?
The Problems of Parents of Last Resort
Judith Masson*
This paper will explore the idea of the local authority as a reluctant
parent. It will consider the extent to which this reluctance is produced
by the care proceedings system and its consequences for children.
Local authorities are both expected to refrain from intervening (care
proceedings are a measure of last resort) and to be fully prepared for
intervention (whilst leaving children with their parents). Amongst the
themes which will be developed here are the impact of the juridifica-
tion of social work and the emphasis on the courts for holding local
authorities to account; the balance between voluntary accommodation
and compulsory care; and the problems of resourcing care services. Its
main focus will be on children who enter care because of abuse or
neglect. Its thesis is that the conflicting expectations on local authori-
ties, resource constraints, and considerations of legal process make
them reluctant parents.
INTRODUCTION
This paper examines the contradictory evidence and beliefs about the
reluctance of local authorities to intervene to protect children. It seeks out
the factors which contribute to this reluctance, particularly the extent to
which it is produced by the care proceedings system and its (positive and
negative) consequences for children. This is not about the failure to identify
risk (as in Climbie
Â
1
and earlier tragedies), but about the deliberate decision to
manage that risk without using care orders. My particular interest in this
topic arises from my work on emergency child protection intervention
2
and
52
ß2008 The Author. Editorial organization ß2008 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*School of Law, University of Bristol, Wills Memorial Building, Queens
Road, Bristol BS8 1RJ, England
judith.masson@bristol.ac.uk
1 Lord Laming, The Victoria Climbie
ÂInquiry Report (2003; Cm. 5730).
2J.Masson et al., Protecting Powers (2007).
the recent Care Proceedings System Review. The latter included in its terms
of reference: `identifying innovative practice which enables children to be
diverted away from court proceeding and, instead, to be supported in their
families where this is possible.'
3
There is a long history of questioning the level of state intervention to
protect children. In 1973 Rowe and Lambert
4
identified a substantial number
of children in the care system who were unlikely to return home but for
whom there were no proper plans. One reason for this was the lack of control
vesting in local authorities; without a parental rights resolution (or a care
order) a local authority could only arrange adoption with parental agreement.
The Children Act 1975 added further grounds for care orders and parental
rights resolutions, introduced freeing for adoption and enabled foster carers
and relatives to apply for custodianship. These changes were all intended to
facilitate `long term planning for children for whom there was no realistic
prospect of rehabilitation with their family',
5
enabling the local authority to
become the legal parent and enabling it to arrange for other carers to be, or
act as, parents. The implementation of the 1975 Act was followed by
concerns that local authorities intervened too readily and had inadequate
powers to support children to remain in their families. In 1984, the Social
Services Select Committee recommended greater use of preventive
services.
6
The 1970s and 1980s were also marked by a series of child death
inquiries which suggested failure by local authorities to use their powers to
remove children.
7
But the media coverage of the Cleveland Inquiry
8
presented the opposite view, of a local authority acting precipitously with
little evidence and breaking up families.
Fox-Harding identified different approaches to state involvement in the
family, including the state as defender of the birth family and the inter-
ventionist state as parent.
9
These contrasting views of the proper role of the
state are reflected in the different interpretations of local authority childcare
practice. From a perspective that accepts local authority responsibility for
children whose parents fail to provide good care, local authorities may
appear reluctant and levels of intervention low. But if parental autonomy is
highly valued, any intervention which cannot clearly be shown to protect a
53
3 Department of Constitutional Affairs, A Fairer Deal for Legal Aid (2005; Cm. 6591)
para. 7.16.
4J.Rowe and L. Lambert, Children Who Wait (1973).
5 Social Services Select Committee 1983, cited in Second Report, Children Act 1975
HC (1984) 20, para. 82.
6 Social Services Committee, Second Report, Children in Care HC (1983±84) 360.
7 See N. Parton, Governing the Family (1991) ch. 3, and J. Masson, `From Curtis to
Waterhouse: state care and child protection in the UK 1945±2000' in Cross
Currents, eds. S. Katz et al. (2000) 565.
8Report of the Inquiry into Child Abuse in Cleveland 1987 (1988; Cm. 412). See, too,
S. Bell, When Satan came to the Boro' (1988).
9L.Fox Harding, Perspectives on Child Care Policy (1991).
ß2008 The Author. Editorial organization ß2008 Cardiff University Law School

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